Obama Should Sue Right Back

So House Speaker John Boehner wants to sue President Barack Obama for his executive orders? Good. Let him. What better time for Obama to challenge the gerrymandering that Republicans have made into a high art form? After all, it’s Boehner’s party that has pulled off the constitutional coup by manipulating district boundaries in state after state—essentially rigging elections in its favor. In Ohio, for example, about half the votes in the House races of 2012 went to Democrats, but the GOP took 12 of the 16 seats. In Pennsylvania, it was more than half, but the GOP grabbed 13 of the 18 House seats.

That’s what has put the “lock” into gridlock. Is it any worse than stuffing the ballot box? And the GOP has the gall to complain that Obama—who is lawfully elected by a real majority—is out of bounds?

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Let Boehner sue. Let the president sue back. Or sue the states that have engaged in any scheme of gerrymandering of the U.S. House.

Does Obama have such a right to sue? You bet he does. The United States has standing to sue any state that interferes with any attribute of its sovereignty. And when state legislatures try to interfere with the right of the people under Article I of the Constitution to elect House members of their own choosing, they are interfering with such an attribute of U.S. sovereignty—indeed, disrupting a relationship that runs from the people to their national government. So, yes: If Obama chose to fire back, the administration would have standing to say: “State legislatures that engage in gerrymandering are interfering with a constitutional scheme that gives the states no role at all in influencing who does or does not go to the U.S. House.”

Sovereignty aside, as a guardian of Americans’ voting rights, the administration at least has a moral right to sue. While gerrymandering per se may not necessarily violate the Voting Rights Act, it has disenfranchised more of us—of all races—than any voter ID law.

Because let’s face it: Given how the House is currently constructed, we’re in a full-blown constitutional crisis. Gerrymandering, named for the suspiciously salamander-shaped district of 18th-century Massachusetts pols Elbridge Gerry, is today much worse than before—both parties have gotten handier digitally and are fine tuning maps with the aid of sophisticated software. At the same time, the parties have become much more partisan, and feel less remorse at the mutilation of the other side.

Experts like Professor Nicholas Stephanopoulos at the University of Chicago argue that gerrymandering schemes now in place are the worst ever in modern history. He actually has a measure for it: the number of “wasted” votes for a disfavored political party in a particular state, divided by the number of votes cast. Wasted votes come from “packing” the voters of the disfavored party into one district—and “cracking” them out of others to give a lift to the favored party. To be sure, throughout our history, there have been wasted votes. But from 1972 to 2010 the fraction of wasted votes over total votes was fairly constant. In 2012 it shot up to a new high. And on balance, the GOP gets 1.6 more seats than an even distribution would ensure. No one is arguing for a rule of even distribution. But the deviation from the mean—indeed, a greater deviation than in prior years—is a way of grasping how the House has come under the control of a minority of the population.

It’s the GOP that controls the districting in more states, and is now using it more ruthlessly than either party did in the past. Indeed, as a minority party, it depends much more on gerrymandering to survive, just as it depends on the filibuster and lifetime tenure of federal judges. Although only around a quarter of Americans identify as Republican (or about 40 percent if you count “leaners”), this minority party effectively controls the House, the Senate (at least through the filibuster) and the Supreme Court. And now it wants to sue the executive, the only branch that represents the actual majority of the country? Seriously?

So it’s past time for the Obama administration to rouse itself. If it does file, it should file at least four separate suits in Pennsylvania, Ohio, Wisconsin and North Carolina, to name a few, all on the same day. Make it a call to battle. And be absolutely sure to sue in my own state of Illinois, where the Democrats did the gerrymandering—just to show fairness. Set a deadline. Issue a statement ahead of time: “Though it’s already prohibited by the Constitution, I call on Congress to pass a law to make gerrymandering of the House illegal. Let’s do it as California does. It has a Citizens Redistricting Commission, selected by the state auditor. No games: Let the people elect the people to the People’s House.”